Citation Nr: 9823168
Decision Date: 07/30/98 Archive Date: 08/04/98
DOCKET NO. 97-25 577 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for the residuals of a
right ankle injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stanley Grabia, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1969 to March
1971.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in No. Little
Rock, Arkansas.
In a hearing before the RO in September 1997, the veteran
withdrew the issues of
entitlement to an increased evaluation for a right, inguinal
hernia; and, service connection for a left, inguinal hernia.
Therefore the only issue before the Board at this time is as
shown on the title page.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that he injured his right
ankle in service, and that it continued to cause pain,
swelling, and instability after service. It weakened his
right ankle and caused him to fracture the ankle in 1984,
and service connection should be granted. The veteran’s
representative has joined in these contentions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the appellant’s claim for service
connection for a right ankle disability.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran’s appeal has been
obtained by the RO.
2. Service medical records indicate that appellant injured
his right ankle in service, was treated for a sprained ankle,
and returned to duty.
3. The post service medical records are negative for any
complaints or treatment for a right ankle disorder until he
fractured his right ankle in a work related accident in July
1984, 13 years after service. Treatment included surgical
correction.
4. A VA examination in April 1997 noted that the right ankle
had well healed surgical scars on the ankle consistent with
an open reduction internal fixation. The ROM was normal,
without crepitus, or effusion. There were complaints of pain
in the ankle. The diagnosis was residuals of sprained right
ankle and postoperative (PO) right ankle with normal PO
findings.
5. There is no competent medical evidence that the veteran’s
right ankle fracture, and other current right ankle pathology
is related to service, or any injury, or incident thereof.
6. The in-service ankle pathology was acute and transitory
in nature and resolved in service without residual disability
as continuing disability is not currently shown that can be
related to service.
CONCLUSIONS OF LAW
A chronic right ankle disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131(West 1991 &
Supp. 1998); 38 C.F.R. § 3.303 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A person who submits a claim for benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107. After reviewing the evidence on file the
Board concludes that the veteran’s claim for service
connection for a right ankle disorder is well grounded within
the meaning of 38 U.S.C.A. § 5107(a). That is, the claim
presented is not inherently implausible. The evidentiary
assertions of this veteran are presumed to be credible for
the purpose of determining that the claim is well grounded.
Furthermore, we conclude that all facts pertinent to the
plausible claim has been developed and that as such, there is
no further duty to assist in developing the claim as
contemplated by 38 U.S.C.A. § 5107(a).
In adjudicating a well-grounded claim, the Board determines
whether (1) the weight of the evidence supports the claim, or
(2) the weight of the “positive” evidence in favor of the
claim is in relative balance with the weight of the
“negative” evidence against the claim: The appellant
prevails in either event. However, if the weight of the
evidence is against the appellant’s claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet.App. 49 (1990).
Service connection is to be granted for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131. This requires a finding
that there is current disability which has a definite
relationship with an injury or disease or some other
manifestation of the disability during service. Rabideau v.
Derwinski, 2 Vet.App. 141, 143 (1992) and Cuevas v. Principi,
3 Vet.App. 542, 548 (1992).
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
The veteran's contention that he currently has a right ankle
disorder that is the result of service is found to be
outweighed by the absence of supporting evidence in the
medical records including negative findings on the VA
examination of April 1997. While the service medical records
indicate complaint and treatment of a sprained right ankle,
no current ankle disorder related to service was shown by
examination. The veteran’s complaints of right ankle pain
appear to be related to his right ankle fracture, 13 years
after service. There is no documentation of a right ankle
disorder for many years post-service, until the intervening
accident in July 1984 in which he fractured the right ankle.
The results of the latest VA examination indicated residuals
of PO right ankle with normal PO findings.
The veteran’s service medical records reveal that in June
1970, the veteran fell and twisted his right ankle. He had
swelling and tenderness over the lateral aspect of the right
ankle joint. X-rays indicated no skeletal abnormalities. He
was treated with a short leg cast for 6 days, then returned
to duty. The diagnosis was sprain, lateral talofibular
ligaments, right ankle. There were no further complaints or
treatment during service. At the time of examination for
separation from service, the findings concerning the ankle
were normal.
In July 1984, the veteran stepped off an air-conditioning
unit and inadvertently stepped into a hole causing him to
fracture his right ankle. He was diagnosed with a fractured
medial malleolus with torn lateral ankle ligaments. This was
surgically repaired and he was discharged. The records
available do not contain any history of recurrent ankle
problems before (or even after) the fracture.
The veteran filed a claim for a right ankle disability in
November 1996.
In a VA examination in April 1997, he reported spraining his
right ankle in service. Afterwards, he reported, his ankle
turned easily and hurt when he walked. In 1984, he fractured
his right ankle in an accident. He was treated with an open
reduction internal fixation. He reportedly still had pain
and discomfort when he walked or was physically active. He
worked as a painter, and has not missed work because of his
leg. He did not take any medication.
The examiner noted that the right ankle had vertical well-
healed surgical scars on either side of the ankle over the
malleolar areas consistent with an open reduction internal
fixation. The ROM was normal, without crepitus, or effusion.
He did have complaints of pain in the ankle. The impression
was: “Observed for residuals of sprained right ankle and
postoperative status right ankle with normal postoperative
findings.” X-rays revealed metallic screws in the medial
malleolus. The ankle mortise was unremarkable.
In a personal hearing at the RO in September 1997, the
veteran testified that he incurred a right ankle disorder in
service, and had continuous problems with the right ankle
since and until he reinjured it in 1984. He would be walking
and step on a rock, and reinjured his right ankle. His
ligaments have always been weak. He complained of constant
shooting pain up his leg, and the ankle would swell. He
admitted that he was not under any treatment, and only took
an occasional Advil for his right ankle disorder. He claimed
to have been treated by a Dr. Guthry from service until his
1984 ankle fracture. The hearing officer asked him to either
obtain any available records from the doctor, or submit the
doctor’s full name and address to the RO so that the RO could
assist him in obtaining these records. The veteran was
allowed 60 days to submit this additional evidence. However
no additional evidence was submitted by the veteran. The
address of the physician also was not provided.
It is the conclusion of the Board that the claim for a right
ankle disorder is not supported by any clinical findings or
competent medical opinion. No medical evidence exists to
show continuity of the service ankle sprain post service.
No post service medical records have been submitted
referencing a right ankle disorder until the veteran
fractured his right ankle in a July 1984 work related
accident. The veteran's current pain in his right ankle, if
any, is attributed to his 1984 right ankle fracture.
His contention of a current right ankle disorder since
service is outweighed by the negative findings on the VA
examination and the absence of supporting evidence of
continuity within the medical records. It is noted that the
veteran was afforded the opportunity to submit additional
supporting evidence by the hearing officer at the RO in
October 1997. He failed to do so. Since the evidence of
record does not demonstrate a chronic disease in service,
continuity of symptomatology from service discharge to the
present time or the presence of a current disability
attributable to an inservice incident necessary to support a
grant of service connection, it is the determination of the
Board that the preponderance of the evidence is against the
claim for service connection for a right ankle disorder.
38 C.F.R. § 3.303.
It is noted that the appellant contends that he had a weak
ankle after the in-service injury, and that as a result, he
was prone to the fracture. He is not competent to make that
medical connection. Moreover, as noted, he has submitted no
evidence that would establish that medical connection. After
the in-service treatment, there are no additional complaints
of a weak ankle, and normal findings were made on examination
for separation. Further, none of the available records at
the time of the 1984 injury include a history of continuing
ankle impairment or weakness. Finally there is no medical
opinion that links the in-service event with the intercurrent
injury in 1984, or with any current ankle impairment. Thus,
there is no competent evidence supporting the contention that
there was a “weak” ankle after service.
When all of the relevant evidence is assembled, the Board is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a fair preponderance
of the evidence is against his claim, in which case the claim
is denied. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990)
The appellant has contended that a right ankle pathology
stems from the inservice event. However, the relationship
between diagnoses and any particular time period or event is
a medical conclusion and the appellant as a layperson is not
competent to offer a medical opinion. See Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Furthermore, for the
reasons above, the evidence does not support this conclusion.
As such, the preponderance of the evidence is against the
claim, and the benefit of the doubt doctrine is not
applicable. 38 U.S.C.A. § 5107.
ORDER
Entitlement to service connection for a right ankle
disability is denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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